Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Skeen and Forbes
v.
The Goodwife of Byth

Date: 16 July 1629

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An husband being obliged, in his contract of marriage with his second wife, to provide the bairns of that marriage to all lands to be conquished by him during their marriage; after the husband's decease, the daughter, being only bairn of that marriage, pursues her father's mother, and his apparent heir, the son of the first marriage, to hear it found that her said father, the time of the second marriage, conquished the lands of ——, and put, in the securities of that conquished lands, his own mother's name, to his own proper use, only, to the prejudice and elusion of the said contract; and that the money was paid for the price of the land by himself off his own monies, and had only borrowed his mother's name; and consequently concluding that the mother should, habili modo, denude herself of the right of the land, in favours of the pursuer. This action was sustained, albeit the other son was called only as apparent heir, and not as heir, or as lawfully charged to enter heir: albeit the defender alleged, that one as heir ought to be called, for that conclusion to denude herself in favours of the pursuer was not allowable against her who was not obliged in any deed to the pursuer; and where it appeared to take away the defunct's heritage, (giving that her name was borrowed,) his heir, or one who may represent him by some form in law, ought to be called. Which allegeance was repelled.

Act. Advocatus and Lermonth. Alt. Nicolson. Scot, Clerk.

Page 464.